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EXHIBIT A  TO ORDER FORM AND AGREEMENT  

ZIGIT SaaS Platform Retailer Terms and Conditions

 These ZIGIT SaaS Platform Retailer Terms and Conditions (The “Terms”) are part of the Order Form and Agreement executed between Bizboxes LLC, A Delaware limited liability company, on behalf of itself and its affiliates and subsidiaries (“Bizboxes”) and Retailer set forth on the Order Form and Agreement to which these Terms are attached, on behalf of itself and its affiliates and subsidiaries (“Retailer”) effective as of the Effective Date set forth on the Order Form and Agreement (“the Agreement”). Bizboxes and Retailer shall herein be referred to each as a “Party” and collectively as the “Parties”. Subject to the terms and conditions of these Terms, the Parties agree as follows: 

 

1. BACKGROUND

 

1.1. Schedule D to this Exhibit A sets forth the definition of Capitalized Terms set forth herein (unless otherwise stated). 

1.2. Bizboxes is in the business of facilitating convenience for Retailers and their customers (the “End Users”) for the sale and delivery of Controlled Items at Retailer Locations through the use of the ZIGIT Platform (as defined below) and associated dispensing technology (“Dispensing Stations”). 

 

1.3. Retailer desires to sell Products through Dispensing Stations at the Location(s) (as defined below and specified on the Order Form). 

 

1.4. Retailer desires to access the Services and acquire Dispensing Stations, and Bizboxes desires to provide

Retailer access to the Services and provide Dispensing Stations, subject to the terms and conditions of this Agreement. 

 

1.5. The terms and conditions applicable to the acquisition and use of the Dispensing Stations shall be set forth on Exhibit B to the Agreement, entitled “Dispensing Station Terms and Conditions” or “Dispensing Station Terms”. 

 

2. THE BIZBOXES SERVICES 

 

Retailer shall be responsible to comply with or incorporate the following safety notices, as follows: 

2.1. Provision of the Services

a) Subject to all terms and conditions of this Agreement, Retailer shall have the right to access and use the Services during the Term solely for purposes of supporting Retailer’s internal business operations in connection with the use of the ZIGIT Platform and to allow End Users to purchase Products from Retailer through the ZIGIT App, in accordance with all applicable Location/Retailer Specific Requirements and Documentation. The Services are a tool licensed to Retailer for the sale of Products. Retailer acknowledges that Bizboxes is not in the business of purchasing, selling or soliciting sales of Controlled Items and does not, and will not, hold a liquor license in connection with this Agreement and Retailer is solely responsible for obtain all liquor licenses at the Locations. 

b) Bizboxes reserves the right to modify and update the features and functionality of the Services from time to time; provided, however, that any change will not have a material and adverse effect on the usability or features or functionality the Services. 

c) The acquisition of Dispensing Stations by Retailer for use with this Agreement shall be subject to the terms and conditions set forth on Exhibit B to the Order 

Form, entitled “Dispensing Stations Terms and Conditions” or “Dispensing Stations Terms.” 

2.2. RestrictionsRetailer agrees to use the Services in compliance with all Applicable Laws, and Retailer agrees that it is solely responsible for its compliance with all such Applicable Laws. Retailer acknowledges that use of the ZIGIT Platform is provided for Retailer’s, Authorized Users’ and End Users’ benefit only, and agrees not to use the ZIGIT Platform for the benefit of any third party, except as permitted under this Agreement. Retailer agrees that it (and shall ensure that any Authorized User) shall not itself or through a third party:

 

a) copy, distribute, rent, lease, lend, sublicense or transfer the Services, make the Services available to any third party or use the Services on a service bureau or time sharing basis, 

b) decompile, reverse engineer, or disassemble the Services or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the ZIGIT Platform, 

c) create derivative works based on the Services; 

d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Services or during the use and operation thereof; 

e) publicly disseminate performance information or analysis (including benchmarks) relating to the Services; 

f) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the ZIGIT Platform; 

g) scrape, export, store, or otherwise retain any copies of raw data (except Retailer Data) which Retailer may access through Services; 

h) use the Services to develop a competitive product offering; or 

i) use the Services in a manner which violates or infringes any Applicable Laws, third party Intellectual Property Rights, or third party privacy rights. Retailer shall not attempt to circumvent through technological means, or otherwise, any Location/Retailer Specific Requirements. 

 

2.3. Suspension/Termination. Bizboxes may temporarily suspend Retailer’s, Authorized Users’ or any End User’s access to or use of the Services at any time if in the Bizboxes’ reasonable business judgment such action is necessary to prevent material errors or harm to any system or network or such action is in violation of Section 6.2(b). Bizboxes may suspend or terminate Retailer’s, Authorized Users’ or an End User’s access to or use of the Services or terminate this Agreement at any time if Retailer attempts to access or use the Services in an unauthorized manner, including any attempt to gain access to data or information relating to other Bizboxes customers or any use that infringes third party Intellectual Property Rights or violates any Applicable Laws. Provided, however, that Bizboxes shall use commercially reasonable efforts to contact Retailer and work to resolve the problem before suspending, or prior to exercising its termination rights hereunder, unless the violation was serious, willful and wanton.

 

2.4. AccountsRetailer is solely responsible for the activities of any and all persons accessing and using the Services using any Authorized User’s username and password. Retailer shall, and shall instruct its Authorized Users to, use all reasonable means to secure usernames and passwords, and shall promptly notify Retailer if it suspects that any username and password has been compromised. Each Retailer’s account may only be accessed and used by the specific named Authorized User for whom such account is created. Retailer acknowledges that use of a ZIGIT Platform account by any person other than the applicable named Authorized User may constitute a material breach of this Agreement. Bizboxes may de-activate Authorized Users and activate new Authorized Users at any time in its sole discretion.

2.5. Third Party Services and Modifications. The ZIGIT Platform may include features or functionality that interoperate with online services operated by third parties (such services, “Third Party Services”) Without limiting the foregoing, Retailer is responsible for ensuring that Retailer’s use of the Services in connection with Third Party Services complies with all policies, terms and rules applicable thereto. Additionally, Retailer acknowledges that:

a) Bizboxes may change, suspend, modify, or remove (collectively, “Changes”) certain functions and features within the Services in connection with Third Party Services without prior notice to Retailer,

b) that such Changes are not regarded as a breach by Bizboxes of the terms of this Agreement, and

c) such Changes will be communicated by Bizboxes to Retailer as soon as commercially practicable.

2.6. Availability. Bizboxes shall use commercially reasonable efforts to maintain availability of the ZIGIT Platform in accordance with Schedule A.

2.7. Support. Provided that Retailer timely makes all payments due under this Agreement, Bizboxes shall provide technical support to Retailer as described in Schedule A.

 

2.8. Control. Unless otherwise specified in the Order Form or otherwise agreed by the parties, Retailer acknowledges and agrees that Bizboxes has no obligation to monitor or edit the Retailer Data but may from time to time. Between the parties, the Retailer is solely responsible for the Retailer Data, including its format, integrity, accuracy, maintenance, and its compliance with all Applicable Laws. Bizboxes reserves the right to remove any Retailer Data which Bizboxes becomes aware may violate the terms of this Agreement, any Applicable Law, or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.

 

2.9. Changes. The Parties may change the scope of the Services and other matters specified in an Order Form or a Schedule only by a written amendment executed by authorized representatives of each Party.

3. PAYMENT

 

3.1. Fees. Fees due under this Agreement are specified in the Order Form and will be paid via ACH payments, or as otherwise agreed by the Parties. In the event that the Retailer chooses to make payments using a credit card, Bizboxes reserves the right to impose a credit card processing fee. The credit card processing fee shall be a percentage of the total transaction amount or a flat fee as determined by Bizboxes and communicated to the Retailer in advance (via invoice notes or other means).

3.2. Payment Terms. Fees for the Subscription Term are due as specified in the Order Form. Fees shall be due and payable within thirty (30) days of receipt of invoice from Bizboxes or as otherwise specified in the Order Form. Unless otherwise specified in an applicable Order Form, Retailer will pay all undisputed amounts in full within thirty (30) days after the invoice receipt date.

 

3.3. Payment Processing. Stripe will act as the payment processor and Retailer will need to contract directly with Stripe and API tokens and online access to Bizboxes for configuration and testing of the environment. Bizboxes will facilitate the Retailer’s enrollment process. Bizboxes reserves the right to change payment processors with reasonable advance communication with the Retailer.

3.4. Good Faith Dispute; Late Payments. The charges in an invoice will be considered to be accepted by Retailer unless Bizboxes is notified of a dispute in writing within 10 days of the receipt date of the invoice. Any undisputed amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Retailer will reimburse reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Bizboxes to collect undisputed amounts that are not paid when due.

3.5. TaxesThe fees stated on the Order Form do not include local, state, federal or other taxes. Retailer will pay all sales, use, all gross receipts or gross margin type tax, or similar state or local taxes directly related to or assessed with respect to the Services. Bizboxes shall be responsible for employment or income taxes.

 

4. OWNERSHIP

 

4.1. Bizboxes. As between the Parties, Bizboxes owns all right, title and interest (including all Intellectual Property Rights) in and to the ZIGIT Platform (including all underlying source code, algorithms, models, features, or functionality), the Services, the Documentation and any software, technology, materials and information which may exist or come into existence related to facilitating or enabling the Services including the dispensing of Products in the Dispensing Stations, whether:

 

a) owned by Bizboxes prior to the Effective Date; or

b) created, authored, developed, made, conceived, or reduced to practice by Bizboxes (including in connection with any Retailer requests, the Services, or with Retailer’s assistance) after the Effective Date (collectively, “Bizboxes IP”). For the avoidance of doubt, Bizboxes IP includes Bizboxes Data and any information, data, or other content derived from Usage Data. Nothing herein shall be construed to transfer any rights, title or ownership of the Bizboxes IP, or any Bizboxes software, technology, materials, information or Intellectual Property Rights to Retailer.

4.2. Retailer Data

 

a) As between the Parties, Retailer owns all rights, title and interest to the Retailer Data collected or processed by Retailer in connection with the Services during the Term provided that Transaction Data collected by Bizboxes will be provided to Retailer solely in a de-identified and anonymized form. Retailer hereby grants Bizboxes a non-exclusive, worldwide license to use, record, reproduce, modify, create derivative works of, display, perform and transmit (a) the Retailer Data: in connection with Bizboxes’ operation of the Services and to provide the Services to Retailer (including assisting Retailer with managing End User transactions), and (b) the Transaction Data: for Bizboxes’ archival and audit purposes, and for other commercial purposes. For the avoidance of doubt, Bizboxes shall use industry standard precautions and measures to ensure that such Transaction Data is de-identified and anonymized in a manner such that the End Users are not identified or identifiable as the source of the Transaction Data, unless Bizboxes is in receipt of a subpoena or other validly issued administrative or judicial process requesting Bizboxes provide Transaction Data in an identifiable form. Bizboxes shall have no rights in such Retailer Data other than expressly provided in this Agreement.

b) Retailer acknowledges and agrees that Retailer Data imported for use within the Services may reside on or be transmitted through Bizboxes Systems. Bizboxes will use commercially reasonable security measures to prevent unauthorized access to the Retailer Data, however, Retailer acknowledges that: (i) no security measures are 100% effective and (ii) the Services uses the Internet for data transfer, and Internet communications have inherent insecurities.

4.3. Feedback. To the extent Retailer provides any ideas, feedback or suggestions regarding any of Bizboxes’ products or services (“Feedback”) to Bizboxes, Retailer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Bizboxes and acknowledges that Bizboxes may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Retailer.

5. TERM; TERMINATION

 

5.1. Term. This Agreement will commence upon the Effective Date and unless this Agreement is terminated earlier in accordance with the terms of this Agreement, shall continue in full force and for the Launch Period specified in the Order Form (the “Subscription Term”). Unless otherwise agreed by the Parties, this Agreement will automatically renew for an additional 12 months unless, at least 15 days before the end of the then-current term, either Party provides written notice to the other Party that it does not want to renew.

5.2. Termination

 

(a) Either Party may terminate this Agreement or the Order Form effective immediately if the other Party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days after receiving written notice of the breach from the non-breaching Party. If Retailer fails to timely pay any Fees, Bizboxes may, without limitation to any of its other rights or remedies, upon providing prior written notice and at least ten (10) days to cure, suspend performance of the ZIGIT Platform, Services and technical support services until it receives all amounts due, or may terminate this Agreement pursuant to this Section 5.2 if the failure to pay is not rectified within thirty (30) days of receipt of written notice by Retailer.

(b) Either Party may terminate this Agreement immediately upon written notice at any time if:

(i) the other Party files a petition for bankruptcy or is adjudicated as bankrupt;

(ii) a petition in bankruptcy is filed against the other Party and such petition is not removed or resolved within sixty (60) calendar days;

(iii) the other Party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law;

(iv) the other Party discontinues its business;

(v) a receiver is appointed over all or substantially all of the other Party’s assets or business; or

(vi) the other Party is dissolved or liquidated.

(c) Bizboxes may immediately terminate this Agreement if Retailer fails to comply with Section 6.2(b).

5.3. Effect of Termination. All rights and obligations of the Parties hereunder shall terminate upon expiration or termination of this Agreement, provided that any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement will survive any such termination or expiration of this Agreement. In addition, upon any termination, Retailer will pay Bizboxes for all conforming Services rendered by Bizboxes prior to the effective date of such termination.

6. REPRESENTATIONS AND WARRANTIES

 

6.1. Mutual. Each Party represents and warrants to the other Party that:

 

a) (i) it has the full power and authority to enter into this Agreement;

b) (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and

c) (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.

 

6.2. Retailer. Retailer represents and warrants, during the Term, that:

a)

(i) Retailer has all right, title, and interest in and to the Retailer Data necessary for its use in connection with the ZIGIT Platform;

(ii) it has obtained all necessary consents and permissions required for its collection of the Retailer Data and its use and Bizboxes’ use of the Retailer Data under this Agreement; and

(iii) the Retailer Data (including the storage, reproduction, transfer, and use thereof as contemplated hereunder) does not and will not violate any Applicable Laws.

b)

(i) Retailer will only use the ZIGIT Platform and the Services to sell the Products at the Location, as specified in the Order Form and in accordance with all Applicable Laws. No other items or services will be sold or offered on the ZIGIT Platform;

(ii) Retailer’s use of the ZIGIT Platform must comply with all Applicable Laws regarding Retailer’s use of the Platform, the Services and the sale of Products as contemplated under this Agreement;

(iii) Retailer is and shall be solely responsible for the safe and responsible service of alcohol sold to End Users utilizing Dispensing Stations at the Location including ensuring that all alcohol consumption and sales abide to all Applicable Laws.

 

c) Retailer shall be responsible for the ownership or control of the Dispensing Stations, placement location, service and Product inventory management and correct placement and labeling of Controlled Products in the Dispensing Stations.

6.3. Bizboxes. Bizboxes represents and warrants, during the Term, that the Services do not and will not:

 

a) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party, or

b) violate any Non-Alcohol Related Applicable Laws regarding the provision of the Services. Bizboxes further represents, warrants and covenants that it shall perform the Services in a professional and workmanlike manner consistent with the quality provided by other leading industry SaaS providers in similar industries and that the Services will materially comply with the specifications set forth in Schedule C.

Retailer’s sole remedy, and Bizboxes’ exclusive liability, with respect to any breach of the representation and warranty set forth in this Section 6.3 is, at Bizboxes’ election,

 

a) Bizboxes’ re-performance of the non-compliant Services such that they are compliant or

b) (ii) termination of this Agreement or the applicable Schedule to the extent it relates to such non-compliant Services.

 

7. INDEMNIFICATION

 

7.1. Indemnification by Bizboxes for Third Party Claims. Bizboxes agrees to defend and hold Retailer and its Affiliates and their respective officers, employees, directors, agents, and representatives (each, a “Retailer Party”) harmless against any claim, allegation, demand, proceeding, action or suit brought by a third party (each, a “Third Party Claim”) brought against a Retailer Party and indemnify Retailer for any Losses arising from or based upon any of the following:

a) any grossly negligent, reckless or intentionally wrongful act of Bizboxes in connection with this Agreement;

b) any failure of Bizboxes to comply with all Non-Alcohol Related Applicable Laws in connection with its obligations under this Agreement; and

c) any allegation that the ZIGIT Platform (excluding any Retailer Data) infringes, misappropriates or otherwise violates such third party’s Intellectual Property Rights resulting from Retailer’s use of the ZIGIT Platform in accordance with the terms of this Agreement. Where Intellectual Property Rights infringement is at issue, if Bizboxes, in its sole discretion, believes a Third Party Claim or an

adverse judgment in connection with such a claim is likely, then Bizboxes may, at its option,

(i) obtain a license from such third party claimant that allows Retailer to continue the use of the ZIGIT Platform,

(ii) modify the ZIGIT Platform so as to be non-infringing, or

(iii) if neither (i) nor (ii) is available on commercially reasonable terms, terminate this Agreement upon written notice to Retailer. If Bizboxes terminates this Agreement pursuant to clause (c) above, Bizboxes shall promptly refund to Retailer any prepaid Fees. Bizboxes will have no obligation or liability relating to any Third Party Claim that results from Retailer’s use of the ZIGIT Platform in a manner that is inconsistent with its intended use or is in breach of this Agreement. This Section 7.1 sets forth the entire liability of Bizboxes and the sole and exclusive remedy of Retailer in the event of any claim that the ZIGIT Platform infringes any third party Intellectual Property Right. For the avoidance of doubt, Bizboxes will have no obligation under this Section 7.1 to the extent that any Third Party Claim or any liability resulting therefrom constitutes a liability for which Retailer is obligated to indemnify the Bizboxes Parties under Section 7.2 below.

7.2. Indemnification by Retailer for Third Party Claims. Retailer agrees to defend and hold Bizboxes, its Affiliates and their respective officers, employees, directors, agents, and representatives (each, a “Bizboxes Party”) harmless from and against any Third Party Claim against a Bizboxes Party to the extent arising out of or based upon any of the following:

a) any grossly negligent, reckless or intentionally wrongful act of Retailer in connection with this Agreement;

b) any failure of Retailer to comply with all Applicable Laws in connection with this Agreement or the sale of Products or Retailer or Retailer’s personnels’ breach of this Agreement or any representations and warranties herein;

c) inappropriate use of the Platform by Retailer and all and Location-specific information and controls provided to Retailer for use in the Platform; and

d) any bodily injury or death of any person or damage to real and/or tangible personal property directly caused by or resulting from the negligence or willful misconduct of Retailer, its personnel or agents during the receipt of the Services or sale of Products.

 

7.3. Limitations to Indemnification. Bizboxes’ obligations under Section 78.1 and Retailer’s obligations under Section 7.2 are each conditioned upon the Retailer Party or Bizboxes Party seeking indemnification (as applicable, “Indemnified Party”):

 

a) giving the other party (the “Indemnifying Party”) full and complete control over the defense and settlement of the Third Party Claim (though the Indemnified Party may, at its option, participate in the defense of the Third Party Claim at its sole cost and expense);

b) assisting the Indemnifying Party with the defense and settlement of the Third Party Claim as the Indemnifying Party may reasonably request (at Indemnifying Party’s expense); and

c) complying with any settlement or court order made in connection with the Third Party Claim. The Indemnifying Party may settle any indemnified Third Party Claim without the Indemnified Party’s prior written consent; provided, however, that the Indemnified Party’s prior written consent must be obtained in the event such settlement

(i) contains an admission of liability or wrongdoing by the Indemnified Party; and/or

(ii) imposes any material obligations upon the Indemnified Party, other than the cessation of use or return of an infringing or misappropriated, or allegedly infringing or misappropriated, item.

8. DISCLAIMERS

 

8.1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO ANY MATTER WHATSOEVER. BIZBOXES EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, TITLE, QUALITY, ACCURACY, AND FITNESS FOR ANY PARTICULAR PURPOSE. BIZBOXES EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON RETAILER’S USE OF THE SERVICES OR THE THIRD PARYTY SERVICES. BIZBOXES WILL NOT BE REQUIRED BY THE TERMS OF THIS AGREEMENT TO BE DIRECTLY OR INDIRECTLY INVOLVED IN SALE OF CONTROLLED ITEMS OR TO HOLD A LIQUOR LICENSE.

8.2. The Parties acknowledge that the ZIGIT App utilizes both biometric authentication and document processing (document recognition, optical character recognition, document feature extraction and document authentication) technologies in connection with the Services. The Parties further acknowledge that such technologies do not yield absolute results as biometrics are probabilistic. In the case of an eligible End User that cannot be verified (a false nonmatch), the Retailer can choose to manually verify age and enable the Platform to allow a specific purchase. As is recognized best security practice, Retailer acknowledges that it will continue to evaluate the overall (all aspects of the) sales process they use for alcohol to ensure an appropriate and complaint process is used.

9. CONFIDENTIALITY; PERSONAL INFORMATION; END USER TERMS OF USE

 

9.1. Confidential Information. Each Party shall keep confidential the terms of this Agreement, the Order Form and any Schedule(s), all information and materials provided or made available by the other Party, whether or not marked as confidential or proprietary, that the receiving Party knows or should have reasonably known is confidential or proprietary at the time of disclosure (“Confidential Information”). For clarity, the features, functionality and content of the ZIGIT Platform (including all data and information made available by the Retailer via the ZIGIT Platform), any ZIGIT Platform Documentation, the Fees charged hereunder and any information regarding planned modifications or updates to the ZIGIT Platform or other Bizboxes products and services constitutes Confidential Information of Bizboxes. Without limiting the generality of the foregoing, all Retailer Data (except as otherwise specified in this Agreement) and all information pertaining to Retailer’s personnel, marketing, business or other plans constitutes Confidential Information of Retailer. Each Party shall keep and instruct its employees and agents, including the Bizboxes Personnels and the Retailer Personnel, to keep Confidential Information confidential by using at least the same care and discretion as used with that Party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither Party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing Party. Information or materials shall not constitute Confidential Information if it is:

a) in the public domain through no fault of the receiving Party,

b) known to the receiving Party prior to the time of disclosure by the disclosing party,

c) lawfully and rightfully disclosed to the receiving Party by a third party on a non-confidential basis, or

d) developed by the receiving party without reference to Confidential Information. In addition, any information required to be disclosed by law or legal process, may be so disclosed, provided that the receiving Party

(i) promptly provide notice (if permitted to do so) to the disclosing Party of such request or requirement so the disclosing Party may seek appropriate protective orders,

(ii) discloses only the minimum amount necessary to comply with the legal requirement, and

(iii) reasonably cooperates (at disclosing party’s expense) if disclosing Party desires to seek appropriate protective orders or otherwise limit disclosure. If any Party, its employees or agents breaches or threatens to breach the obligations of this Section 9, the affected Party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.

 

9.2. Data Privacy. It is understood and agreed that Personal Data may be input or uploaded into the Platform by Retailer, its Authorized Users or End Users, as part of Retailer’s and End User’s use of the Services. Bizboxes will collect and manage End User personal information collected through the End User registration process in accordance with Bizboxes Privacy Policy available at www.zigit.app/privacy .

 

9.3. End User Terms of Use. End Users who use the ZIGIT Mobile App to purchase items from a Dispensing Station must download the ZIGIT Mobile App and will be required to register an account in order to purchase Products from the Retailer’s Dispensing Stations via the ZIGIT Mobile App. Within this registration, which is completed prior to being allowed to purchase Products though the ZIGIT Platform, the End Users must agree to the End User License Agreement and Terms of Use set forth at www.zigit.app/terms .

9.4. Retailer Authorized Users or Bizboxes personnel who are authorized by Retailer or Bizboxes to access the Platform may monitor sales, inventory or other Platform activity. Retailer is responsible for all activities that occur under their password or account and all actions of Authorized Users to the sale extent of Retailer’s liability under this Agreement. Retailer is responsible for all Location/Retailer Specific Control Requirements and related information and controls in the Platform, whether managed by Bizboxes or Retailer.

10. LIMITATION OF LIABILITY

 

10.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, INFRINGEMENT, SYSTEM FAILURE OR NETWORK OUTAGE, SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT (INCLUDING LOST PROFITS OR LOSS OF BUSINESS), EVEN IF EITHER PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (A) LIABILITY ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (B) A LIABILITY ARISING OUT OF SECTION 7.1 OR 7.2, OR PARTY’S BREACH OF SECTIONS 4 (OWNERSHIP) OR 9 (CONFIDENTIALITY), UNDER NO CIRCUMSTANCES, INCLUDING INFRINGEMENT, SYSTEM FAILURE, PLATFORM FAILURE OR NETWORK OUTAGE, SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY LIABILITY OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, FOR AGGREGATE LIABILITY, WHEN AGGREGATED WITH SUCH PARTY’S LIABILITY UNDER THIS AGREEMENT INCLUDING ALL ORDER FORMS HEREUNDER AND THEREUNDER, IN EXCESS OF THE TOTAL FEES PAID TO BIZBOXES FOR SERVICES UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION HAS ACCRUED, AS APPLICABLE. ANY CLAIM OR CAUSE OF ACTION BROUGHT BY RETAILER OR BIZBOXES ARISING UNDER THIS AGREEMENT OR OTHERWISE RELATING TO THE SERVICES OR PLATFORM PROVIDED HEREUNDER MUST BE BROUGHT WITHIN TWO (2) YEARS FROM THE DATE ON WHICH SUCH CLAIM OR ACTION AROSE OR ACCRUED OR SUCH CLAIM WILL FOREVER BE BARRED.

11. INSURANCE

 

The Parties agree to maintain the insurance coverages described in Schedule B.

 

12. MISCELLANEOUS

 

12.1. Non-Exclusivity. Unless specified otherwise in the Order Form, this Agreement is non-exclusive and does not restrict or prevent either Party in any way from entering into similar relationships with third parties.

 

12.2. Third Party Beneficiaries. Except as expressly set forth in this Agreement, nothing herein shall give, or is intended to give, any rights of any kind to any third parties.

 

12.3. Publicity. A Party shall not use the other Party’s name, logo, or other marks without the prior written consent of the other Party, except that Retailer hereby consents to (a) Bizboxes’ use of Retailer’s name, logo and Location on Bizboxes’ website and within the ZIGIT App; and (b) Bizboxes’ issuance of a press release in connection with an event stating that Bizboxes has placed Dispensing Stations at a Location.

 

12.4. Order Form of Precedence. In the event of a conflict between the terms of this Agreement any Exhibits, Schedules and the Order Form, the order of precedence is: (1) the applicable Order Form, (2) Exhibit A for any Services, (3) Exhibit B for any Box Related Services, and then (4) any other schedule or addendum to this Agreement.

 

12.5. Assignment. Neither Party to this Agreement may assign, sell or transfer its rights or obligations under this Agreement to any other firm or entity without first obtaining the written permission of the other Party hereto; except that either Party may assign all of its rights and obligations under this Agreement without the other Party’s consent to an Affiliate or to a successor-in-interest to its business related to this Agreement (including a successor by way of merger, acquisition, sale of all or substantially all assets, or change of control).

 

12.6. Governing Law; Jurisdiction. The Parties hereto agree that all questions pertaining to the validity and interpretation of this Agreement will be determined in accordance with the laws of the State of Delaware, without giving effect to provisions related to choice of laws or conflict of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

 

12.7. Relationship of the Parties. There shall be no partnership or joint venture created by this Agreement. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either Party the power to a) act as an agent or b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each Party’s business are the sole responsibility of that Party. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever.

 

12.8. Force Majeure. Nonperformance of either Party of its obligations under this Agreement, excluding payment obligations, will be excused to the extent that performance is rendered impossible by fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non- performing Party.

12.9. Notices. Except as otherwise specified in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be in writing and will be effective upon (i) personal delivery, (ii) the next business day after being sent by a nationally recognized overnight courier, or (iii) except for notices pertaining to an indemnifiable claim, the next business day after sending by a confirmed email. Notices to Retailer may be delivered to the address set forth in the Order Form. Notices to Bizboxes may be delivered to 3145 E Chandler Blvd, Suite 110, PMB 335 or info@zigit.app . Either Party may change its physical address or email address for receipt of notice by notice to the other Party in accordance with this Section 12.9.

 

12.10. Interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

12.11. General. This Agreement (including the Order Form, Exhibits and Schedules) constitutes the entire agreement of the Parties hereto regarding their subject matter and supersedes any prior agreement between the Parties relating to such subject matter. Neither Party relies upon any warranties, representations, assurances or inducements not expressly set forth herein. This Agreement may only be amended by a writing signed by both Parties. This Agreement, including the referenced attachments and Schedules, if appliable, may be executed in any number of identical counterparts, with the same effect as if the Parties had signed the same document. All counterparts will be construed as and constitute the same agreement or executed attachment. This Agreement, including the referenced attachments and Schedules, may also be executed and delivered by original signature, facsimile or other image capturing technology (including scanned files and by electronic signature), and such execution and delivery will have the same force and effect of an original document with original signatures. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. No failure on the part of either Party to exercise, and no delay in exercising, any right or remedy available to it, shall operate as a waiver of such remedy, nor shall any single or partial exercise of any right or remedy hereunder preclude any other right or remedy. The waiver by either Party of any breach of this Agreement does not waive any other breach. No waiver shall be effective unless it is made in writing and executed by the Party to be charged.

SCHEDULE A

Platform Uptime and Support

1. Uptime Commitment. If the ZIGIT Platform is functioning properly and available for use by Authorized Users (“Uptime”) at least 99% of the time (excluding any downtime caused by: (A) Retailer’s equipment or end user’s phone or internet connections; (B) scheduled maintenance that has been communicated at least 48 hours in advance to Retailer; (C) events that are outside the reasonable control of Bizboxes if Bizboxes is maintaining adequate redundancy and emergency failover plans), Bizboxes shall be deemed to be complying with its “Uptime Obligations” hereunder. Retailer acknowledges and agrees that the ZIGIT Platform may be unavailable (in whole or in part) from time to time due to: (i) equipment, software or service malfunctions outside the reasonable control of Bizboxes; (ii) scheduled maintenance, update or upgrade procedures or repairs; or (iii) causes beyond the reasonable control of Bizboxes, including interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Retailer shall not be liable for any unavailability caused by any of the foregoing.

 

2. Technical Support. Technical Support shall consist of answering questions from Authorized Users regarding use of the Services and any errors within the Services during Bizboxes’ normal business hours (M-F 8am-8pm EST). Retailer may submit requests for Technical Support through e-mail (info@zigit.app ) or by phone (833) 699-4448. Bizboxes will use commercially reasonable efforts to respond to each case within one (1) business day and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Bizboxes’ reasonable determination. For purposes of this exhibit, “business day” means any day other than a Saturday, Sunday, or legal holiday.

SCHEDULE B 

Insurance 

Retailer shall maintain the following insurance coverages: 

• Employer’s Liability / Worker’s Compensation Insurance ($1,000,000 Each Occurrence) 

• General Liability Insurance

o $1,000,000 each occurrence / $2,000,000 aggregate 

o $2,000,000 products & completed operations 

o $1,000,000 liquor liability 

o $1,000,000 personal & advertising injury 

o $1,000,000 hired & non-owned auto liability 

 

• For leased Dispensing Stations, Leased and rented equipment (with Bizboxes as an additional insured) as a schedule to property insurance. 

• Umbrella Coverage ($5,000,000 each occurrence / $5,000,000 aggregate) 

 

Retailer’s commercial general liability insurance policy (and property insurance if it covers liability for dispensing stations) must name Bizboxes as an additional insured. Additional insured coverage must apply as primary insurance with respect to any other insurance afforded to Bizboxes. The Retailer’s insurance, both general liability and any excess or umbrella coverage shall be primary and any insurance maintained by Bizboxes shall be excess and non-contributory. 

In the event Retailer fails to obtain or maintain all required insurance coverage, Retailer is still obligated to defend and indemnify Bizboxes. Retailer will provide proof of insurance upon request. 

Bizboxes will maintain the following insurance coverages, as may be amended and modified from time to time: 

• Cyber Liability Insurance: o $1,000,000 network an information security 

o $1,000,000 multimedia content liability 

o $1,000,000 regulatory defense and penalties 

o $1,000,000 PCI fines and assessments 

 

• General Liability Insurance: o $1,000,000 each occurrence / $2,000,000 aggregate 

o $2,000,000 products & completed operations 

o $1,000,000 personal & advertising injury 

o $1,000,000 hired & non-owned auto liability 

 

• Umbrella Coverage ($5,000,000 Each Occurrence / $5,000,000 Aggregate) 

• Retailer will be included as an additional insured for Bizboxes (or their supplier’s) coverage for dispensing stations. 

 

Both Retailer and Bizboxes insurance coverage shall be in effect during the term of any agreement and for six (6) months following its termination or expiration 

SCHEDULE C 

The ZIGIT Platform Standard Technology Features 

Capitalized terms used but not defined in this Schedule have the meaning given to those terms in the Agreement. 

DESCRIPTION OF SERVICES

The ZIGIT Platform authenticates the validity of an End User’s government issued identification, then validates the End User is consistent with the identification used. A face template is created that is then used to confirm the age eligibility of the End User at the time of purchases (of any items the Retailer has specified as controlled with the Platform) from the Retailer. 

Bizboxes will provide Retailer with access to the ZIGIT Platform. This Platform and included applications provide control and management tools that enable the ZIGIT App to allow End Users to buy Controlled Items from the Retailer. The Platform has control tracking and management of: 

• Authorized Retailer users (including box attendants, restockers, etc.) 

• Products (including price, images and part numbers) 

• Inventory (at the box level including ability to inactivate Dispensing Stations as needed) 

• Cart and checkout process (including payment processing and End User authentication) 

• Controls to support restrictions (including age restrictions and max number of 2 drinks per End User transaction) 

• Order history 

• Usage, inventory and sales reports 

 

The Retailer determines and sets desired controls in the Platform and Bizboxes provides ongoing Platform administrative support. This includes updates to product detail and providing data and reports in formats that are useful to Retailer. 

The Platform works in conjunction with Dispensing Stations that have been enabled to work specifically with the Platform. All Dispensing Stations must be purchased or leased through Bizboxes or through a Bizboxes approved vendor. 

Services falling outside of those set forth in this Schedule C shall be specified in the applicable Order Form or other mutually agreed to amendment to this Agreement.

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